General Terms and Conditions of Business (TCB) of HolyPoly GmbH
As at 09.10.2022
For all contracts concluded between HolyPoly GmbH, Jagdweg 15, 01159 Dresden, Germany (hereinafter called ‘HolyPoly’) and the relevant contract partners (hereinafter called ‘Customers’ or ‘Clients’), only the following General Terms & Conditions of Business (hereinafter called ‘TCB’) shall be applicable. The TCB are intended exclusively for business people as defined in Section 14 of the German Civil Code (BGB). Opposing terms & conditions of business of the customer shall only be enforceable if these are recognised explicitly in advance and in writing by HolyPoly. Any agreements that deviate from these TCB or any supplementary agreements must be in written form. The object of all contracts concluded based on these TCB include - and this list is not exhaustive - consultancy services provided by HolyPoly in relation to recycling management, in particular to the recycling of plastic as well as the manufacture and sale of plastic granulate and recycling products.
2. Conclusion of contract
2.1 All offers tendered by HolyPoly are always subject to change without notice and/or are merely calls by the customers for the submission of binding offers.
2.2 An effective conclusion of contract involves the written, express declaration of acceptance by HolyPoly in favour of the customer.
2.3 Until such time as the offer has been accepted, at least in text form, HolyPoly reserves the right to amend or withdraw the offer at any time.
3. Fulfilment of contract and provision of deliverables
3.1 HolyPoly provides the customer with its deliverables or services either in the form of billable hours of labour, in the form of a lump-sum package of deliverables or by stating a defined quantity or number. (Agreement on the provision of a deliverable, a service or the manufacture of a product, together or individually referred to as ‘Deliverables’ or as ‘Deliverable content’). In each case, these must be founded upon the specific contractual agreements with the customer.
3.2 HolyPoly defines and sets the phases of contractual fulfilment as well as the specific content of deliverables agreed between the contracting parties in written form at the beginning of the provision of deliverables stage (‘Description of offer’). The description of offer can for example take the form of what is known as a briefing, a proposal or a requirements catalogue. If the customer declares their satisfaction with the description of offer, the deliverables then owed by HolyPoly after final confirmation by HolyPoly shall be identical to the contents of this description of offer.
3.3 Should the customer wish to make changes to the deliverables or to the schedule, HolyPoly reserves the right to amend the offer.
3.4 Changes to project-related procedures and to deliverables shall be effective provided that those changes are made in written form (at least by e-mail). The costs of changes shall be borne by the customer.
3.5 In the event of a deliverable getting curtailed, delayed or cancelled by the customer, the deliverables supplied by HolyPoly up until that point shall be invoiced in full, plus all commensurate costs that HolyPoly has incurred in this connection together with all non-cancelled costs of third parties with which HolyPoly had entered into a commitment.
3.6 HolyPoly shall provide the contractually compliant document for approval purposes at the agreed date and time. This work shall be considered to have been accepted if the customer receives the goods and confirms acceptance without notification of any defects. Minor defects that do not impair functionality do not entitle the customer to refuse acceptance of the goods. Defects of form also do not entitle the customer to refuse acceptance. These shall be remedied by HolyPoly without delay. In the event of the work not being accepted after delivery for any reason other than a major defect, it shall be viewed as having been accepted two weeks after delivery. As a rule, the acceptance test must be conducted immediately and recorded in writing, but no later than two weeks after delivery. All complaints must be notified in writing, at least in text form.
3.7 If the properties of the work exclude the possibility of an acceptance test, completion of said work shall constitute acceptance.
3.8 Payment of the settlement figure must also be made if minor defects still exist.
3.9 Payment of the settlement figure must be made exclusively to the account named in the offer. Unless otherwise agreed, the settlement figure must be paid within 14 days of receipt of the final invoice.
3.10 If the total value of the order exceeds a net figure of €5000, 50 percent of the figure is due when an order is placed and 50 percent immediately after the final invoice is issued. The payment target in each case is 14 days after placing the order and issuing of the final invoice. Subject to written agreement, a prompt-payment discount can be deducted.
3.11 HolyPoly has the right to charge for costs eligible for reimbursement that arise in connection with the provision of deliverables provided that these costs are not already included in the settlement figure.
3.12 If remuneration is based on the information provided by the customer that later proves to be incomplete or not applicable, HolyPoly has the right to increase the remuneration figure to cover any additional cost incurred through provision of the deliverables as well as to bill the customer for all additional necessary costs incurred in that process. Other additional costs that, despite due diligence, could not be anticipated by HolyPoly on the date an order was placed can be billed for separately by HolyPoly if these are founded upon a factually justified reason that is clearly evident to the customer and is sufficiently substantiated. This also applies if the customer is not responsible for the underlying cause of those costs.
3.13 It is common practice for the remuneration figure in offers to be stated in euro. In exceptional cases where the contract is denominated in a different currency to the euro, this shall be subject to the exchange rate fluctuations occurring between the placing of an order and payment by the customer. To the extent that exchange rate fluctuations occur and that this causes HolyPoly to incur additional costs that could not be anticipated at the time the contract was concluded, HolyPoly has the right to bill the customer for those additional costs. Additional costs must be notified to the customer immediately and then be included in the next invoice to the customer. All invoice amounts are net figures to which statutory value-added tax must be added and paid.
3.14 In the event of a delay in remuneration and/or claims for payment, penalty interest at the rate of 9% above the prevailing base rate can be applied together with a lump-sum arrears charge of €40 in accordance with Section 288 (5) of the German Civil Code (BGB). The right is reserved to apply a higher penalty charge for arrears in payment.
4. Contractual term, rights of termination or revocation
4.1 With respect to the term of the contract and its termination, always refer to the stipulations in the written order that pre-date these TCB. Should no such stipulations be provided for in the written order, then the following provisions shall apply.
4.2 If the contract is concluded for an indefinite period, the contractual relationship can be terminated by either part within 30 days of the end of a month.
4.3 If a minimum contractual term has been agreed, the contractual relationship can be terminated by serving notice of 14 days to the end of the contractual term. Failing this, the contractual relationship shall extend automatically for a further month. The·same applies to extensions to the contract.
4.4 If the contract is not concluded for a defined period of time, but the contractual term is instead linked to the delivery of a service or to the manufacture of a product, the contractual relationship can then only be terminated on compelling grounds in accordance with legislative stipulations, unless otherwise provided for in these TCB. Termination must be effected in writing.
4.5 HolyPoly is entitled to terminate the contract with immediate effect in the case of long-term payment arrears,
- where the other party (customer) commits a substantial breach of contract for which no remedial measures are possible or, if remedial action is possible, this measure is not performed within 10 days of written notification to the infringing party or
- if the customer announces insolvency or enters into (voluntary or enforced) liquidation involving the appointment of a liquidator or an asset administrator,
- a corresponding application is submitted or if a general meeting of shareholders is convened at which a vote is to be taken in relation to procedural matters, insolvency or dissolution by the other party, or if such action is initiated against the customer.
4.6 In the event of premature ending or termination of the contract by the customer or if the customer, e.g. due to a serious contractual infringement, the deliverables provided by HolyPoly up until that date shall be billed in full by HolyPoly together with all commensurate costs that HolyPoly has incurred in relation to this, together with all costs in favour of third parties that cannot be cancelled and to which HolyPoly has committed itself. Furthermore, it is agreed that HolyPoly shall then be entitled to 30 percent of the remuneration agreed in favour of the undelivered proportion of the deliverable (Break-Up Fee). The variance with the remuneration already received must then be paid out. The customer reserves the right to provide evidence in support of damages being less serious than this.
4.7 The customer is then only entitled to offset such receivables as are undisputed or substantiated by legislation.
4.8 In the event of payments failing to be made, HolyPoly reserves the right to retain deliverables or outcomes.
4.9 HolyPoly reserves title to the deliverables, outcomes and objects delivered (hereinafter called ‘Deliverables’) until payment in full has been received in relation to all contractual receivables. This also applies to all future deliveries.
4.10 The customer is obliged, until such time as it holds the title to these goods, to treat the deliverables with great care. In particular, reference is made to those deliverables being insured sufficiently and to new replacement value at the customer's expense against theft, fire and water damage. If maintenance and service work need to be carried out, the customer must conduct this work on schedule and at its own expense. If the title to goods has not yet been transferred, the customer is required to notify HolyPoly immediately and in writing if the item supplied is distrained or subjected to any other form of intervention by third parties. If the third party is not in a position to reimburse the court and out-of-court costs of a lawsuit as defined in Section 771 of the German Code of Civil Procedure (ZPO), the customer shall be liable for the costs incurred by HolyPoly.
5. Warranty and liability
5.1 The liability and warranty of HolyPoly are founded upon statutory provisions unless otherwise indicated.
5.2 HolyPoly guarantees the proper completion of the deliverables that it provides. Warranty claims only arise in relation to obvious defects if the customer reports these within two weeks of receipt of the final invoice. In relation to defects that are not immediately obvious, this period of time applies from awareness of the defect but no later than one month after receipt of a final invoice. The warranty period begins on receipt of the final invoice and lasts for one year.
5.3 HolyPoly is not liable to the customer for losses or damages of whichsoever kind in connection with conclusions or recommendations that HolyPoly has expressed in relation to the provision of deliverables and that are contained in the outcomes. In relation to the above, the customer recognises that it is solely responsible for all consequences of the measures it takes with regard to the deliverables and outcomes or as a consequence of its interpretation of the deliverables or outcomes, except in cases where HolyPoly is found to be responsible for a major violation of its obligations. However, HolyPoly is liable without restriction for damages caused by HolyPoly, its employees and agents, either deliberately or through gross negligence, through fraudulent concealment of defects, with the express adoption of a guarantee and for damages in the form of injury to life, limb and health.
5.4 For other damages, HolyPoly shall only be liable in cases where an obligation is violated where proper fulfilment of the contract is contingent upon it being upheld and where the other party to contract is entitled to have full confidence in it being upheld (cardinal obligation). The obligation to provide compensation is limited to damages of this nature that can be viewed as contractually typical and predictable. This does not affect liability founded upon product liability legislation. No liability extending beyond the above by HolyPoly is excluded, as is any liability resulting from secondary damage caused by a defect, subject to the provisions of the previous paragraph.
5.5 The customer is subject to an obligation to cooperate. Immediately after conclusion of this contract, the customer must provide HolyPoly with all required materials (documents, access details, information, named contacts, sample parts, diagrams, drawings, materials, data sheets, content etc.) and must carry out all reasonable cooperative actions required to provide the deliverables and for the required work outcomes.
5.6 In cases where the customer gets into arrears over acceptance of goods or if it culpably infringes other obligations to cooperate, HolyPoly is entitled to demand reimbursement of the damages incurred and resulting therefrom, including additional costs. The right to enforce further claims is reserved.
5.7 Unless otherwise agreed, none of the parties may assign the contract, either wholly or in part. Assignment of this kind is only possible with the written consent of the other party. Consent may only be withheld if substantial grounds are found to exist. 5.8 In relation to the right for the provision of a deliverable, HolyPoly reserves the right to appoint subcontractors. HolyPoly is only responsible for the deliverables provided by its subcontractors if it selected and paid them itself. HolyPoly is not responsible in relation to subcontractors appointed by the customer, in particular for the work they perform (including its accuracy, completeness or quality).
6. Intellectual property
6.1 The intellectual property and/or the commercial property rights for the deliverables provided by HolyPoly and outcomes achieved (including drafts, sketches, graphics, pictures, templates, samples, presentations, films, animations, punches, cutting dies, moulds, negatives, shaping devices, digital data, etc.) all remain the exclusive property of HolyPoly.
6.2 The onward communication of deliverables and outcomes produced is only permitted to properly accredited participants. Furthermore, the onward communication and use of this material by third parties is prohibited, unless it is with the express consent and/or licensing of HolyPoly.
6.3 It is agreed that HolyPoly has the right throughout the term of this contract and also after it has ended to use all outcomes and other knowledge and information obtained from the deliverables for internal purposes, as part of its databases and for its own business purposes, also in conjunction with any relevant legal dispute.
6.4 HolyPoly retains the title to all working materials used by HolyPoly required to manufacture outcomes and that were created by HolyPoly. There is no obligation to publish.
6.5 The customer ensures that the working materials or other specifications or instructions provided to them do not infringe the rights of any third party, in particular any commercial property rights or intellectual property rights. The customer undertakes to indemnify HolyPoly against any claims applied by third parties in relation to alleged or actual infringement of their intellectual property rights or commercial property rights, provided that the outcomes/deliverables from HolyPoly were produced on the basis of working material provided by the customer and if these are the origin of any such infringement of intellectual property rights or commercial property rights.
7. Confidentiality and data protection
7.1 All working materials and data records shall be stored digitally, entirely at the customer's own risk. The data records and/or materials provided by HolyPoly can be deleted or destroyed by HolyPoly one year after the end of the contract unless legislative stipulations preclude this. After this one-year grace period, HolyPoly cannot be required to reissue them.
7.2 Both parties undertake (a) to use the confidential information exclusively in the context of this contract, (b) to treat all confidential information of the forwarding party confidentially and neither to copy it nor to communicate it to third parties, (c) without the express written consent of the forwarding party not to communicate this confidential information wholly or in part to other persons who are not directors, employees, the parent company, subsidiaries or agreed subcontractors who need to have knowledge of this confidential information in conjunction with the deliverables and who have signed an agreement that obliges them to maintain confidentiality and non- use, and (d) immediately to obey every written call from the forwarding party and to destroy or return confidential information (as well as all copies, summaries and excerpts thereof) to the forwarding party that are under the control or in the possession of the receiving party at that point in time.
7.3 Without any restriction on the general applicability of the preceding clause, offers produced by HolyPoly may contain confidential information about HolyPoly. The customer must maintain confidentiality over the content of offers and over all information or ideas, in whichsoever form that are communicated during a sales meeting or a consultancy session. Without the prior written consent of HolyPoly, the customer must not forward any of this to third parties, nor use it in any way nor derive other material from it nor use offers for other purposes than an examination relating to the awarding of an order to the company to provide the deliverables named in the offer.
7.4 In conjunction with personal data provided by the customer: (a) HolyPoly will only use this data to provide its deliverables, (b) in the light of the status of technical development and related costs HolyPoly shall apply the required technical and organisational safety measures to protect personal details against unauthorised and unlawful processing, accidental loss, destruction or damage, (c) HolyPoly shall respond to the entitled queries from the customer to facilitate the monitoring of compliance of this contractual point by HolyPoly. Priority is accorded to the data protection provisions of HolyPoly that constitute part of these TCB.
7.5 To the extent that a deliverable from HolyPoly requires the provision of personal details by HolyPoly or by its agents and/or by third parties it has nominated to process or use that data, the customer must ensure that it is authorised to provide this data in accordance with statutory provisions and/or – to the extent necessary – that it has obtained the consent of the people affected.
7.6 HolyPoly undertakes to comply with currently applicable data protection legislation and to store securely all personal details provided by the customer and only to use them in accordance with applicable statutory provisions governing data protection and with its own applicable data protection provisions.
8. Travel and travel expenses
8.1 The Client shall bear all travel, travel, accommodation and, if applicable, incidental expenses incurred, insofar as such are necessary as a result of the assignment. The Client shall be notified in advance of all plannable costs. Travel times shall be considered working times.
8.2 Travel times shall be remunerated at half the daily rate. After consultation, travel times may be charged at half or quarter days, and the remuneration shall be adjusted accordingly.
8.3 The following shall continue to be charged
- Costs for local transportation on the basis of the individual receipts.
- Costs for cabs on the basis of the individual receipts. Cabs should be used only in exceptional cases.
- Costs for rail travel (2nd class).
- Cost of air travel, economy class tickets (domestic and international).
- Mileage allowance for travel by motor vehicle at the rate of 0.40 euros per kilometer driven.
- Car rental costs based on individual receipts, maximum category C, or compact class.
8.4 The additional cost of meals without itemized receipts shall be charged at 30.00 euros per day. Abroad, the statutory lump sums shall apply if these are higher.
8.5 Accommodation costs in hotels up to € 80.00/night incl. breakfast. Settlement shall be made on the basis of individual receipts.
8.6 All incidental expenses (airport charges, telephone costs, baggage fee, etc.) will be reimbursed on the basis of individual receipts.
9. Final provisions
9.1 These general terms & conditions of business are governed by German Law and expressly exclude the UN Convention on the International Sale of Goods.
9.2 In order to be valid, any changes or additions to this contract must be in written form, to the extent that no contradictory rulings were incorporated in the TCB. The same applies to the waiving of this requirement for the written form.
9.3 The court of jurisdiction for all disputes, to the extent permitted under statute, is Dresden.